Part 1 of the Bill deals with preliminary
matters including commencement and definitions. The Bill will
define ‘human rights’ as the rights and freedoms
recognised or declared by the seven core United Nations human
rights treaties as they apply to Australia. These treaties
are:

·
Convention on the Elimination of All Forms of Discrimination
against Women

·
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment

·
Convention on the Rights of the Child, and

·
Convention on the Rights of Persons with Disabilities.

Part 2 of the Bill establishes the
Parliamentary Joint Committee on Human Rights (the Committee) and
sets out the functions and administrative arrangements for the
Committee.

The Committee will have the functions of
examining Acts, bills for Acts and legislative instruments for
compatibility with Australia’s human rights obligations and
reporting to both Houses of Parliament. It will also inquire
into, and report to Parliament, on matters relating to human rights
referred to it by the Attorney-General.

Part 3 of the Bill introduces a requirement
for statements of compatibility to be prepared for all bills and
legislative instruments subject to disallowance. A statement
of compatibility must assess whether the bill or legislative
instrument is compatible with the human rights in the seven core
United Nations human rights treaties.

For bills, preparation and presentation to
Parliament of a statement will be the responsibility of the
Minister or private member or Senator responsible for the
bill. For legislative instruments, the amendments in the
Human Rights (Parliamentary Scrutiny) (Consequential Provisions)
Bill 2010 will require a rule-maker to lodge a statement of
compatibility as part of the explanatory statement of a legislative
instrument. The explanatory statement is then tabled with
that instrument in accordance with the requirements in the
Legislative Instruments Act 2003 .

Part 4 of the Bill deals with miscellaneous
matters and enables the Governor-General to make regulations.

The Human Rights (Parliamentary Scrutiny)
(Consequential Provisions) Bill 2010 contains the consequential
amendments to the Legislative Instruments Act relating to
statements of compatibility. It also contains amendments to
the Administrative Appeals Tribunal Act 1975 to include the President of the Australian Human
Rights Commission as an ex officio member of the Administrative
Review Council, as announced under the Human Rights
Framework, and related amendments.

The items in this Bill have no financial
impact on Government revenue.

Part 1
- Preliminary

Clause 1: Short title

Clause 1 provides that when the Bill is
enacted, it is to be cited as the Human Rights
( Parliamentary Scrutiny) Act 2010.

Clause 2: Commencement

Sections 1-3 will commence on the day the Act
receives Royal Assent. Parts 2, 3 and 4 of the Bill will
commence on the later of 1 January 2011 and 28 days after the Act
receives the Royal Assent.

Clause 3: Definitions

Clause 3 defines the key terms used in the
Bill. The term ‘human rights’ is defined in the
Bill as the rights and freedoms recognised or declared by the seven
core United Nations human rights treaties as that treaty applies to
Australia. The treaties are:

·
International Convention on the Elimination of All Forms of Racial
Discrimination

·
International Covenant on Civil and Political Rights

·
International Covenant on Economic, Social and Cultural Rights

·
Convention on the Elimination of All Forms of Discrimination
against Women

·
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment

Clause 4 provides that as soon as practicable
after commencement of the first session of each Parliament, a Joint
Committee on Human Rights is to be appointed according to the
practices of the Parliament.

Clause 5: Membership of the Committee

Clause 5 sets out the administrative
arrangements for the establishment of the Committee and for the
appointment of members according to the practices of
Parliament. This clause is consistent with provisions for the
appointment of other statutory committees such as the Parliamentary Joint Committee on the Australian
Commission for Law Enforcement Integrity, the Parliamentary Joint Committee on the Australian
Crime Commission and the Parliamentary Joint Committee on Corporations
and Financial Services.

The Committee will consist of ten (10) members
of Parliament, five (5) members of the House of Representatives, to
be appointed by that House, and five (5) members of the Senate, to
be appointed by the Senate. A Minister, President, Speaker,
Deputy-President or Chair of Committees cannot be appointed
to the Committee and will cease to be a member of the Committee if
he or she obtains one of these offices after their
appointment. Either House of the Parliament may appoint one
of its members to fill a vacancy amongst the members of the
Committee appointed by that House.

Clause 6: Powers and proceedings of the Committee

Clause 6 requires all matters relating to the
powers and proceedings of the Committee to be determined by
resolution of both Houses of Parliament.

Clause 7: Functions of the Committee

Clause 7 sets out the functions of the
Committee which are:

·
to examine Bills for Acts and legislative instruments for
compatibility with human rights

·
to examine Acts for compatibility with human rights, and

·
to inquire into any matter relating to human rights which is
referred to it by the Attorney-General.

The Committee is to report on each of these
matters to both Houses of Parliament.

In addition to the scrutiny function, the
Committee will be able to examine Acts and conduct broader
inquiries on matters related to human rights referred to it by the
Attorney-General. In performing these functions, the
Committee will be able to call for submissions, hold public
hearings and examine witnesses.

The Committee will be able to determine the
manner in which it performs its scrutiny function to ensure that
reports on compatibility of bills and legislative instruments with
human rights are provided to Parliament in a timely manner.

Clause 8: Statements of compatibility in relation to
Bills

Clause 8 sets out the requirements for
preparation of statements of compatibility for bills and
presentation of statements to Parliament. The clause does not
prescribe a particular form for statements of compatibility but
provides that a statement of compatibility must include an
assessment of whether the bill is compatible with human rights as
defined in clause 3. Statements are intended to be succinct
assessments aimed at informing Parliamentary debate and containing
a level of analysis that is proportionate to the impact of the
proposed legislation on human rights.

The member responsible for the bill must cause
the statement of compatibility to be prepared. The statement
of compatibility must be presented to the House or the Senate (as
appropriate) by the member of Parliament who introduces the bill,
or another member acting on his or her behalf. A statement
will ordinarily form part of the explanatory memorandum for the
bill.

Subclause 8(4) provides that a statement of
compatibility in relation to a bill is not binding on a court or
tribunal. This provision is not intended to exclude the
operation of section 15AB of the Acts Interpretation Act
1901 which deals with use of extrinsic material in the
interpretation of an Act.

As is currently the case, courts may use
extrinsic material to assist in determining the meaning of a
provision in the event of ambiguity. This can include other
material considered by Parliament in the passage of legislation
such as accompanying Explanatory Memoranda, Second Reading Speeches
and Parliamentary Committee reports. Consistent with current
rules of statutory interpretation, a statement of compatibility and
a report of the Joint Committee on Human Rights could be used by a
court to assist in ascertaining the meaning of provisions in a
statute where the meaning is unclear or ambiguous.

Subclause 8(5) provides that a failure to
comply with this clause does not affect the validity or operation
or enforcement of the Act or any other law of the Commonwealth.

Clause 9 sets out the requirements for
preparation of statements of compatibility for legislative
instruments subject to disallowance under the Legislative
Instruments Act. A statement of compatibility must
include an assessment of whether the legislative instrument is
compatible with human rights as defined in clause 3. As with bills,
statements are intended to be succinct assessments aimed at
informing Parliamentary debate and containing a level of analysis
that is proportionate to the impact of the proposed legislative
instrument on human rights.

The rule-maker for a disallowable
legislative instrument must cause a statement of compatibility to
be prepared in respect of that legislative instrument.

The note under subclause 9(1) refers the
reader to section 4 of the Legislative Instruments Act and explains
that the statement of compatibility must be included in the
explanatory statement for a legislative instrument to be prepared
by the rule-maker. The Legislative Instruments Act sets out
the process for tabling legislative instruments and accompanying
explanatory statements. Amendments to the Legislative
Instruments Act to include a requirement for statements of
compatibility for a disallowable legislative instrument to form
part of an explanatory statement prepared by the rule-maker of that
instrument are contained in the Human Rights (Parliamentary
Scrutiny) (Consequential Provisions) Bill 2010.